Chronicle of an Amendment Foretold: eliminating presidential term limits in Ecuador

A protester sets fire to a banner with an image depicting President Correa outside the National Assembly where lawmakers debate a series of constitutional reforms on 3 Dec. 2015. (photo credit: Dolores Ochoa)

On 3 December
2015 the National Assembly of Ecuador (Congress), with a vote of 100 to eight,
approved a package
of 16 constitutional amendments that touch on a wide variety of controversial
subjects, including eliminating presidential term limits. The amendments were voted in the 137-seat National
Assembly, in which Correa’s Alianza
Pais or PAIS party has a
two-thirds majority. The amendments were approved, but raised several questions
about the ability of the Ecuadorian political institutions to protect term
limits as a cornerstone of a constitutional democracy.

Writing the Constitution, changing
the Constitution

Correa, a
US-educated economist who campaigned on a platform of socialism for the 21st
century, was elected president in 2006 on a progressive leftist political agenda
broadly supported by social movements and an electorate disappointed in
traditional party politics. Correa criticized the neoliberal policies of prior
decades promising instead to reorient the country toward alternative models of
development. He formed PAIS, a new political coalition that incorporated the
promise of constitutional reform that would change the political system through
a broad participatory process. The new constitution was to be the product of a
“citizens’ revolution,” as Correa called his participatory project.

During the
past eight years, under Rafael Correa’s government, Ecuadorians were asked to
vote more than five times in order to be part of the citizens’ revolution.
Either to approve a new constitution, change it, or elect the politicians who
will do so, Correa provided the Ecuadorian people with the most important tool
to make a democratic revolution real: their vote. Since 2006,
the citizens’ revolution won every election and referendum with vast
majorities. People were given a powerful and decisive voice after the economic
crisis in the 2000s, when the Constitution
of 1998 sank into a largely dysfunctional political system
and vicious cycle of political instability.

In 2007, over 80 percent of the Ecuadorian electorate approved
to convoke a Constituent Assembly, and a few months later, PAIS won a majority
of seats in the Assembly elections. One year later, 64 percent of the
electorate approved the 444 articles of the new Constitution
of 2008 in a referendum.

President Correa, however, was not the first president
to make use of constitutional referendums in Ecuador. In 1997, a referendum was
held in the context of a severe constitutional crisis to legitimate the
decision of Congress to oust President Bucaram and declare Fabian Alarcon, as the
new President. Ecuadorians also voted on such other complex issues as the de-politization
of the judicial system. Likewise, many other countries of Latin America have
introduced referendums into their legislation since the
1990s.

In 2014, three years after the first amendments to the
2008 Constitution were approved, PAIS announced again that the party was
considering a constitutional amendment to allow the reelection of
President Correa for his third term in 2017. It was clear that the party
decided it was time to make a new adjustment to the supreme norm to favour
Correa, since it provided that the president could serve only two consecutive
terms.

Shortly after these declarations were made, PAIS
presented a proposal to the
National Assembly in order to amend the Constitution in 17 different areas,
including the elimination of presidential term limits, granting the Armed
Forces the power to provide support for the integral security of the State, and
declaring communication a public service, among others.

The draft was submitted to the Constitutional Court to
decide the appropriate method to process the amendments proposed by PAIS. The
question here was, referendum or extraordinary legislative process? It was
expected that all these reforms were going to be decided directly by the people.
After all, they have been the protagonists of every single electoral victory of
the citizens’ revolution since the very beginning of Correa’s government.

Amendments vs. Reforms

The Ecuadorian Constitution establishes a system,
known as aconstitutional ‘padlock’,
to reform its content. The padlock consists of procedures for constitutional
amendment and either partial or total constitutional reform.

The padlock locks the content of the Constitution by
regulating the difference between amendments and reforms (substantive), and by
establishing the procedures for each of them (procedural). Amendments and
reforms may be approved or denied by referendum, by a legislative process, or
by a combination of the two. The most radical possibility is a total reform of
the Constitution, which means writing a new one in a Constituent Assembly. In all these cases, the president has the
power to propose either amendment, or partial or total reforms.

The Constitution, however,
also sets parameters to differentiate matters for amendment from matters for
partial reforms. Article 441 establishes that an amendment may not be
used to a) alter the fundamental structure of the Constitution; b) alter the
nature and constituent elements of the State; c) set constraints on
constitutional rights; and d) change the procedure for reforming the
Constitution. Article 442, on the other hand, ascertains that a partial reform
may not be used to a) set constraints on rights or guarantees, and b) change the
procedure for amending or reforming the Constitution.

Amendments may be approved either by a referendum, when
they are proposed by the president or by the citizenry, or through a
legislative process, when they are proposed by members of the Assembly. Reforms,
in contrast, always have to be processed through a legislative process at the
National Assembly first, and then approved in a national referendum.

The Constitutional Court,
according to Article 443, had to establish which of these procedures pertained
to each of the 17 proposed constitutional modifications. In the case of the
elimination of the presidential term limits, the question was whether it
requires an amendment or a partial reform? If it was considered an amendment,
since it was proposed by the legislators, it would have to be approved by the
National Assembly. If it was considered a partial reform, then it would have to
be approved both by the Assembly and in a national referendum.

Several
opposition movements argued that
eliminating presidential term limits was altering the ‘nature and constituent
elements of the State’ and consequently, it should be treated as a partial
reform and not as an amendment. PAIS, on the other hand rejected this argument
on the basis that elections and not presidential term limits were a constituent
element of the State structure, and consequently, eliminating them was only an
amendment to the Constitution and not a partial reform. The lack of
presidential term limits per se, they
argued, will not automatically perpetuate presidential power, as Presidents
will still have to win elections.

To limit or not to limit

In the case of Ecuador, concentration of executive
power has already been severely criticized due to the decisive vote of the
President in the nomination of independent state institutions; for example, the
nomination of members of the Constitutional Court (Art. 434), and for having a
representative in the Judicial Council (Art. 179). Looking at similar cases in
the region, the Colombian Constitutional Court took a different approach when denying
a request to call for a constitutional referendum to allow the
re-election of Alvaro Uribe in 2010. The Court established that limiting the
reelection of an elected authority amounts to limiting power. Unlimited power
may blur divisions between branches of government. Moreover, if there are no
term limits, alternation of power is affected and “the voice of the people
cannot be appropriated by one group of citizens”.

Despite the arguments presented by opposition groups,
the Constitutional
Court of Ecuador approved the petition of the Assembly to treat 16
of the 17 proposals, including abolishing presidential term limits, as
‘amendments’ - thus excluding the possibility of a referendum. After that, the
National Assembly initiated a ‘dialogue’ in which PAIS legislators travelled
around the country to increase
public awareness of the content of the reforms. The
dialogue, according to PAIS, took place in every single province of Ecuador and
more than 124 sub-commissions had meetings with grassroots organizations.

However, by June 2015 widespread protests broke out across the country, mainly due to
Correa’s plans to increase taxes, that ultimately led to demands for a ‘real
dialogue’ and Correa’s resignation. Meanwhile, Correa reiterated that he stood
ready to run again but only if no other PAIS candidate emerged to replace him.
However, in November 2015, Correa
announced that he will not run for re-election, in an effort to silence his critics who accused him of
seeking to extend his time in power, and confident that another candidate from
his party can win in the 2017 general elections.

On 3 December 2015 the amendments were approved by the National Assembly
in the midst of social confrontation and divisive positions about their social
and constitutional legitimacy. Following Correa’s declaration, the legislators
included a transitional provision that prevents President Correa from seeking a
third term in 2017.

The lessons at the end of the road (or until the next amendment
proposals)

The danger to democracy of eliminating presidential term limits was obfuscated by the regime using electoral arguments that claimed that it is the
people (not the Constitution), who should implement presidential term limits,
when they decide whether or not to re-elect a president. Despite this apparent ‘transfer’
of power to the people, and past experiences of heavily relying on their voters,
this time the mandatory constitutional referendum was avoided by PAIS. Why? Did
PAIS consider that there was a chance of losing the referendum?

First, when it comes to deciding whether referendums are the appropriate
mechanism to overturn term limits, there are several intrinsic limitations to
consider, including the potential manipulation of this mechanism by authoritarian
leaders. Referendums may be used as a populist device to stay in office rather
than a mechanism of making politics more responsive.

In the case of Ecuador, the constitutional design providing for the
mechanisms of direct democracy was meant to ensure the electorate the
possibility to exercise a “bottom-up” vertical control. In search for an
institutional solution to the accountability deficit of the presidential system
of the country, the Constitution stipulated a mandatory referendum to reform
the Constitution. In this context, the voter becomes a veto player of both the
Executive and the Legislative Branch. Avoiding the mandatory referendum this
time, translated into avoiding vertical control ‘from below.’

Finally, the fact that Correa will be impeded from
running for President does not change the fact that the amendments will allow
his party to have more control over several institutions. Besides the removal
of presidential term limits, there are three further outcomes of the reforms with
important repercussions. First, the armed forces will be able to collaborate
with the police on matters of state security. Second, the Executive strengthened
its control over education and health policies, thus local governments will not be
able to decide on these issues without the permission of the Executive. And
third, communication is declared to be a public service. Opponents claim that declaring communication a public
service opens the door for regulation of the media and the utilization of the
press as a propaganda tool. Government officials argue that the proposed
amendment will democratize the media, which they claim is controlled by private
interests, and consequently will make journalism more accountable and
accessible.

All in all, these three sets of policies have
significant implications for the future of the country both short- and long-term.
Security, communication, health and education are now more in the hands of the
Executive than before. Instead of strengthening a system of checks and balances
between the different branches and levels of government, the reforms represent
institutional changes that undermine the possibility of limiting the Executive
power.

The entire process of amending the constitution appears
to be decided from the very beginning. Correa’s decision not to run for
elections in 2017 seems to conceal a smart move to pave the way for winning
elections in the future. At the end, Ecuador’s recent Constitutional amendment
process resembles in a way the suspense novel of Gabriel García Marquez, Chronicles
of a death foretold, where we get caught in the plot even though we already
know its outcome from the very beginning.

Carolina
Silva-Portero is a
Science of Juridical Doctor Candidate (SJD) at Harvard Law School. Her doctoral
dissertation project is a cross-national comparison of the relationship between
constitution-making processes and ethno-national diversity in Latin America.

Disclaimer: The views expressed in Voices from the Field contributions are the author's own and do not necessarily reflect International IDEA’s positions.